Director of Public Prosecutions v Maskell (Ruling No 2)
[2023] VSC 507
•10 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0234
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TROY MATTHEW MASKELL | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 9 and 10 August 2023 |
DATE OF RULING: | 10 August 2023 |
DATE OF REVISED REASONS | 25 August 2023 |
CASE MAY BE CITED AS: | DPP v Maskell (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 507 |
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CRIMINAL LAW – Ruling – Jury directions – Whether any available alternatives to the single charge of manslaughter – No available alternatives – Mareangareu v The Queen [2019] VSCA 101 – Section 239 Criminal Procedure Act 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Clancy | Office of Public Prosecutions |
| For the Accused | Ms J Munster with Mr S Collins | Victoria Legal Aid |
HIS HONOUR:
Introduction
In this matter, Troy Maskell (‘the accused’) is charged with the manslaughter by an unlawful and dangerous act of John Edward Burke (‘the deceased’). The incident leading to the death of Mr Burke occurred at Strathmerton in Victoria on 8 August 2021. His death occurred at the Royal Melbourne Hospital on 28 October 2021.
The detailed facts of this matter are briefly set out in my ruling dated 29 June 2023 which concerned pre-trial evidence issues.[1] However, for the purpose of this ruling it is important to note that the prosecution case is that the accused, under some degree of intoxication, threw a full bottle of sports drink at the deceased man, striking him on the side of the head and then shortly afterwards kicked him to the ground fracturing his pelvis. I will shortly refer to the prosecution’s summary of what occurred.
[1]DPP v Maskell [2023] VSC 355R.
After the evidence had concluded and before counsel’s addresses, an issue arose between the parties as to whether I should leave any alternative charge to the jury in circumstances where no alternative to the single charge of manslaughter was included on the indictment. The submissions on behalf of the accused began with the possibility that an alternative charge open to be left was the charge of recklessly cause serious injury. The submissions later concerned whether the charge of unlawful assault should be left as an alternative. There are no statutory alternatives to the charge of manslaughter.[2]
[2]Crimes Act 1958, Part III.
On 10 August 2023, I indicated to the parties that I would not leave any alternative charges to the charge of manslaughter for the jury’s consideration. I advised I would provide my reasons for that conclusion in writing. These are those reasons.
Background
The Crown charged the accused with one count of manslaughter, contrary to common law. The particulars of the indictment are:
The Director of Public Prosecutions charges that TROY MATTHEW MASKELL at Parkville in Victoria on the 28th day of October 2021 killed JOHN EDWARD BURKE.
The facts alleged to constitute the offence are set out as follows in the Amended Prosecution Summary of Opening:[3]
[3]Amended Summary of Prosecution Opening filed 2 August 2023 [20]-[29].
The accused drove into the service station and parked his white Mitsubishi Triton utility next to the high flow diesel fuel pump.
The accused started pumping fuel into his ute, while TAYLOR [his partner] and Caitlin entered the shop. NORTH [the attendant] was behind the service counter, and the deceased was standing opposite NORTH, with his back to the forecourt when TAYLOR entered the store with Caitlin and walked towards the drink refrigerators.
TAYLOR and Caitlin were in the store selecting drinks and food items. The deceased said “Hey, how are youse?” and Caitlin responded, “yeah, really good.” TAYLOR asked the deceased if he had been looking at “the kid” and calling the deceased a paedophile. TAYLOR told the deceased to “stop looking at her”.
TAYLOR placed a number of items on the counter to purchase, including a one litre bottle of red MAXIMUS isotonic sports drink. Caitlin then left the store and returned to the car. The accused entered the store just after Caitlin left. By this time, the deceased was standing in the doorway between the store and the “truckie lounge”.
TAYLOR was abusing the deceased saying something like “fuck you” and “I’ll rape you” in an aggressive manner. NORTH scanned TAYLOR’s items through the cash register, in an attempt to get TAYLOR out of the store.
The accused approached the counter and said to the deceased, “Do we have a problem?” The deceased replied that they didn’t have a problem. TAYLOR told the accused that the deceased had been looking at Caitlin. TAYLOR was behaving aggressively and erratically, directing abuse towards the accused, NORTH and the deceased. At times the accused joined in TAYLOR’s verbal abuse of the deceased.
At approximately 12:55am, the accused approached the service counter from behind TAYLOR and picked up the 1 litre bottle of sports drink. He moved the bottle to his right hand and threw it at the deceased’s head, stepping towards the deceased as he released the bottle. The deceased was standing just inside the truckie lounge, when he was struck to the left side of the head with the bottle. The deceased’s eyeglasses were dislodged and fell to the floor. NORTH did not have a line of sight to the deceased at the time but heard him yell out.
The accused aggressively approached the deceased, who was attempting to regain his balance, and kicked him in his left hip, causing the deceased to fall heavily to the ground. TAYLOR came into the lounge and pushed the accused away from the deceased towards the counter. Cooper TAYLOR-RICHARDON, who had entered the store shortly before the accused threw the bottle, attempted to usher the accused and TAYLOR away. The deceased remained on the floor in the lounge area.
The accused re-entered the lounge and intentionally stomped on the deceased’s glasses, which were lying on the floor, before returning to the main part of the shop. Shortly after, the accused returned to the lounge area for the final time, and kicked the bottle of MAXIMUS sports drink, which had come to rest on the floor, into the deceased’s upper leg/groin area. The accused then stood over the deceased and berated him until he was pulled away by TAYLOR-RICHARDSON. TAYLOR then entered the lounge and stood over the deceased and abused him until being pushed away by TAYLORRICHARDSON.
The accused, TAYLOR and TAYLOR-RICHARDON remained in the store for a short time. TAYLOR-RICHARDSON asked NORTH where he kept the cameras and NORTH replied he did not know where they were kept. The accused said to NORTH “You’d wanna wipe that off the tape or [redacted]”. The accused, TAYLOR and TAYLORRICHARDSON ultimately left the store and returned to the ute. They drove away from the service station at approximately 12:59 am.
The deceased died from the effects of brain injury on 28 October 2021. It is important to note that the primary issue in the trial is the question of causation, there being a number of medical conditions afflicting the deceased after the incident. The jury will have to determine whether the prosecution are able to prove that an act or acts of the accused were the cause of the death of the deceased. There is also an issue concerning the dangerousness of the conduct of the accused within the objective legal meaning of that term.
Applicable legislation and case law
For the charge of manslaughter, as I have noted, no alternative charges are specified by the Crimes Act 1958 as being available to a jury to return in circumstances where an alternative has not been included on the indictment.
However, s 239 of the Criminal Procedure Act 2009 allows, in trials for any offence except treason or murder, a jury to return an alternative verdict for another offence, if the allegations on the indictment amount to or include (expressly or by necessary implication) an allegation of that other offence. That section provides:
239 Alternative verdicts on charges other than treason or murder
(1)On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.
This involves the application of the so-called common law ‘red pencil’ test. An offence will amount to or include another offence if words could be deleted from the particulars of an offence in the indictment in a way that leaves the particulars of the alternative offence.[4]
[4]Mareangareu v The Queen [2019] VSCA 101 [44]; Chaarani & Ors v The Queen (2020) 61 VR 353 [83].
The availability of an alternative verdict depends on the terms in which the charged offence is laid, and not upon the evidence adduced. The evidence led at the trial is only relevant to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.[5]
[5]R v Salisbury [1976] VR 452; Reid v R (2010) 29 VR 446; Pollard v R (2011) 31 VR 416; R v Perdikoyiannis (2003) 86 SASR 262; Chaarani & Ors v The Queen (2020) 61 VR 353.
Submissions
Prosecution
The prosecutor, Ms Clancy, filed written submissions on 10 August 2023. She argued that there is no other available alternative charge to manslaughter in this case. She relied on the Court of Appeal judgment of Mareangareu v The Queen[6] and relied on the following parts of that judgment in her written submissions:
[6][2019] VSCA 101 (‘Mareangareu’).
43 In LLW, the Court explained the two principal kinds of case in which a jury may return an alternative verdict:[7] There are two principal classes of case in which a jury may deliver an alternative verdict. The first is where allegations in the indictment ‘amount to or include’ the allegation of another offence. That is the position at common law and it is now reflected in a specific statutory provision.[8] For example, where the accused is charged with intentionally causing serious injury, the allegations include the
allegation of intentionally causing injury, which is therefore an
available alternative.[9]The second class of case is where the Crimes Act 1958 (‘the Act’) creates a statutory alternative to the principal count. An example of the latter is s 425(1), which applies where a person is on trial for rape. If the jury are not satisfied that the defendant is guilty of rape or attempted rape, they may find the defendant guilty of one or other of several sexual offences specified in the subsection.
44 As counsel for the applicant in this Court submitted, the question of whether an alternative offence is expressly or impliedly included in the indictment is answered by the application of what is often described as the ‘red pencil test’. The red pencil test involves the deletion of words from the particulars of an offence contained in the indictment, thus leaving the particulars of an appropriate alternative offence. [7] LLW v The Queen (2012) 35 VR 372, 374 [2]–[3] (Maxwell P, Weinberg JA and Williams AJA)
(‘LLW’) (citations as in reported version).
[8]Criminal Procedure Act 2009 (Vic) s 239(1): see Pollard v R (2011) 31 VR 416 at 423 [33].
[9]R v Kane (2001) 3 VR 542 at 584–5 [105].
Ms Clancy argued that, consistent with the approach described in Mareangareu, the availability of an alternative verdict depends upon the terms in which the charged offence is particularised in the indictment.
She submitted that because no words could be deleted from the particulars on the indictment that leave the particulars of any alternative offence, no alternative offences are available.
Defence
Ms Munster, who appeared with Mr Collins for the accused, relied on oral submissions only. Ms Munster argued that I could leave to the jury the alternative charge of unlawful assault.[10]
[10]Unlawful assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958 (Vic) the maximum penalty is five years’ imprisonment.
She did not dispute the existence of the ‘red pencil test’ but instead said the principles from the Court of Appeal in R v Nous,[11] applied. That judgment, which was delivered eight years before Mareangareu, provides authority for the principle that whether an alternative offence should be left depends on all the circumstances of the case, including the dictates of public interest, fairness to the accused, the course of the trial and the scope of forensic judgement on the part of counsel.
[11](2010) 26 VR 96; (2010) 199 A Crim R 134; [2010] VSCA 42.
Ms Munster reasoned that:[12]
… the law does permit the jury to return an alternative verdict for another offence if the allegations in the indictment amount to or include an allegation of that other offence.
[12]Transcript of Proceedings, R v Troy Matthew Maskell (Supreme Court of Victoria, S ECR 2022 0234, Lasry J, 10 August 2023) 385 [22]-[25].
Her submission was ultimately that the way in which the defence case was run meant that the allegations in the indictment necessarily included an unlawful assault. As was conceded throughout the trial, an unlawful assault occurred when the accused threw the one litre sports drink bottle which hit the deceased and then kicked him. As a result, she submitted:[13]
…an unlawful assault is bound up and part of the elements of the offence of manslaughter.
[13]Ibid, 386 [31] – 387 [1].
Consideration
It is correct to say that the offence of assault might be able to be said to be implicit in the charge of manslaughter in this case. However, that offence is not revealed in the indictment by the application of the test which ‘…involves the deletion of words from the particulars of an offence contained in the indictment, thus leaving the particulars of an appropriate alternative offence’.
As Ms Clancy correctly submitted, the ‘red pencil test’ as articulated in Mareangareu is the relevant test. In that case, the Court, among other things, was required to consider whether the charge of common assault was an available alternative to intentionally causing injury. In paragraph 45 of Mareangareu the Court of Appeal quoted the following passage from the English case of R v Lillis:[14]
[W]hen, as in this case, the court has to decide what was included expressly in the
indictment, the proper course is to look at the words of the indictment and to apply
the red pencil rest. To do otherwise would be to ignore the word ‘expressly’. If what
is left after striking out all the averments which have not been proved leaves
particulars of another offence within the jurisdiction of the court of trial which the
accused can then and there defend, the judge can and should ask the jury to consider whether that other offence has been proved. ... (my emphasis)
[14][1972] 2 QB 236, 241-2.
The Court of Appeal went on to say, at paragraphs 46 and 47:
… Quite plainly, no matter the ingenuity with which one wields a red pencil in the present case, it is impossible to produce particulars apposite to a charge of common assault from those of intentionally causing injury.
We consider that, had the prosecution sought conviction for common assault as an alternative to intentionally causing injury, a charge of common assault needed to have been included on the indictment. In circumstances where common assault was not on the indictment, neither common law nor statute permitted the jury to convict of that offence. …
In my opinion, there are no means available to me (by statute or common law) to leave to the jury any alternative offence, including unlawful assault, to the charge of manslaughter. There are no particulars of another offence within the jurisdiction of the court incorporated in the charge on the indictment. It is true that proof of another offence, being any of unlawful assault, recklessly causing serious injury and/or assault by kicking, is part of the several elements of the offence of manslaughter but none of those matters are expressly particularised in the indictment.
In those circumstances, I will not leave any other offence to the jury and will direct them that their only verdict must be one of guilty or not guilty of manslaughter.
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